IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 1686 C.D. 2019
: Submitted: April 21, 2023
F.A. Realty Investors Corporation :
:
Appeal of: Agnes Frempong and :
Steve Frempong :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: July 14, 2023
Agnes Frempong and Steve Frempong (collectively, the Frempongs), acting
pro se, appeal the orders dated October 9, 2019, in the Court of Common Pleas of
Philadelphia County (Common Pleas), which denied their motion to strike the decree
directing that a property owned by F.A. Realty Investors Corp. (F.A. Realty), 5800
North 17th Street, Philadelphia (Property), be sold at a sheriff’s sale and denied their
petition to intervene in the sheriff’s sale proceedings. The Frempongs argue, among
other things, they were indispensable parties and entitled to intervene because Agnes
Frempong acquired a small ownership interest in the Property after the proceedings
began, and Steve Frempong was the lessee of the Property. After careful review, we
affirm.
I. Background
On October 16, 2017, the City of Philadelphia (City) filed a petition for rule
to show cause why the Property should not be sold at a sheriff’s sale. It averred the
Property was subject to liens for unpaid water and sewer bills. Common Pleas issued
the rule and directed the City to serve all respondents. The City filed affidavits of
service on November 13, 2017, and January 24, 2018. The November 13, 2017
affidavit asserted a process server posted the Property’s front door. It included a
picture of the front door with service attached. The January 24, 2018 affidavit
asserted the City mailed service to F.A. Realty at several different addresses, and to
various other interested parties, by certified and first-class mail.
Notably, the January 24, 2018 affidavit of service indicated the City served
the Frempongs as interested parties. Steve Frempong appears in the record as both
the president and a shareholder of F.A. Realty. Reproduced Record (R.R.) at 131a,
187a. On or about November 11, 2017, Steve Frempong signed a deed on behalf of
F.A. Realty, recorded on November 13, 2017, transferring a 2.5% ownership interest
in the Property to Agnes Frempong. Id. at 186a. The Frempongs then began to file
a series of pro se pleadings in an attempt to defeat, delay, and undo the sheriff’s sale
proceedings.
The Frempongs first filed a petition to strike the City’s petition and Common
Pleas’ rule to show cause on September 24, 2018. They averred a challenge to the
unpaid water bills underlying the petition was pending before the Tax Review Board,
and the City failed to serve them in compliance with statutory provisions commonly
known as the Municipal Claims and Tax Liens Act (Act).1 The Frempongs also filed
1
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101–7455.
2
an answer and new matter on November 13, 2018. By order dated December 5,
2018, Common Pleas denied the Frempongs’ petition to strike.2
Common Pleas held a brief hearing on the City’s petition on March 12, 2019,
and, on March 13, 2019, docketed a decree directing that the Property be sold at a
sheriff’s sale. On March 22, 2019, the Frempongs filed a motion for reconsideration,
which Common Pleas denied by order dated March 25, 2019. The Frempongs then
appealed the March 13, 2019 decree at Commonwealth Court docket number 511
C.D. 2019.3 A sheriff’s sale of the Property occurred on June 19, 2019.
The Frempongs filed numerous pro se pleadings over the next several months,
including a motion to strike the sheriff’s sale decree on July 8, 2019, and a petition
to intervene on September 3, 2019.4 In their motion to strike, the Frempongs argued
a challenge to the unpaid water bills underlying the petition was pending before the
Tax Review Board, the City misrepresented their interests in the Property and failed
to serve them in compliance with the Act, and Common Pleas failed to conduct an
adequate hearing on March 12, 2019. In their petition to intervene, the Frempongs
2
The Frempongs appealed at Commonwealth Court docket number 45 C.D. 2019. On March 28,
2019, the Court dismissed their appeal for failure to pay the filing fee. See City of Phila. v. F.A.
Realty Invs. Corp. (Pa. Cmwlth., No. 45 C.D. 2019, dismissed March 28, 2019).
3
The Frempongs requested a stay of post-decree proceedings, which Common Pleas granted until
the Frempongs’ deadline for filing a concise statement of errors complained of on appeal. They
also filed a motion to postpone the sheriff’s sale, which Common Pleas denied.
4
Additionally, the Frempongs filed two motions to redeem the Property, a request that Common
Pleas stay the acknowledgement and transfer of the sheriff’s deed, and exceptions to the proposed
distribution of the sheriff’s sale proceeds. The Frempongs withdrew their request that Common
Pleas stay the acknowledgement and transfer of the sheriff’s deed and their first motion to redeem.
Although the Frempongs withdrew their first motion to redeem on August 27, 2019, Common
Pleas denied it by order dated October 9, 2019. Common Pleas entered an order dated October
28, 2019, granting the Frempongs’ exceptions to the extent that excess proceeds from the sheriff’s
sale should be used to pay municipal claims in the names of F.A. Realty or Agnes Frempong. It
denied the Frempongs’ second motion to redeem by order dated November 18, 2019.
3
contended Agnes Frempong was entitled to intervene as part owner of the Property.
The Frempongs averred they were “previously granted intervention as the Motions
Court Clerk” had informed them they were respondents to the sheriff’s sale petition,
but the City later challenged their standing. R.R. at 212a. Therefore, the purpose of
their petition was to “correct or cure any defect.” Id. The petition also referenced
documents attached to the Frempongs’ March 22, 2019 motion for reconsideration,
which included a purported lease of the Property from F.A. Realty as the lessor to
Steve Frempong as the lessee.
On October 2, 2019, this Court issued an order granting the City’s application
to quash the Frempongs’ appeal at docket number 511 C.D. 2019. See City of Phila.
v. F.A. Realty Invs. Corp. (Pa. Cmwlth., No. 511 C.D. 2019, quashed October 2,
2019). The Court offered the following explanation:
[I]t appears that F.A. Realty . . . was the only named respondent in the
action before [Common Pleas]. It further appears that the Frempongs
never petitioned Common Pleas for intervention, nor were they given
permission to intervene by Common Pleas. Because the Frempongs
were not parties to the action before Common Pleas they do not have
standing to appeal to this Court.
Id.
Common Pleas convened a hearing shortly thereafter, on October 9, 2019, at
which it addressed both the Frempongs’ motion to strike and petition to intervene.5
See R.R. at 218a-25a. Common Pleas explained it would deny the motion to strike
and petition to intervene, citing our order at docket number 511 C.D. 2019. Id. at
5
Counsel for F.A. Realty appeared at the hearing with the Frempongs, although the Frempongs
have officially remained pro se throughout the proceedings. F.A. Realty filed its own petition to
strike the March 13, 2019 sheriff’s sale decree on October 8, 2019. Common Pleas denied F.A.
Realty’s petition by order dated November 18, 2019, and F.A. Realty appealed at Commonwealth
Court docket number 1863 C.D. 2019. See City of Phila. v. F.A. Realty Invs. Corp. (Pa. Cmwlth.,
No. 1863 C.D. 2019, filed July 14, 2023).
4
220a-25a. Regarding the petition to intervene specifically, Common Pleas reasoned
this Court’s order rendered it “moot,” because we concluded the Frempongs lacked
standing. Id. at 221a. Common Pleas continued:
THE COURT: . . . . [Steve Frempong] cannot intervene. He is not a
party. And so I can’t then go on my own and say well, yeah, I’m going
to allow him to intervene when they just said that he can’t. . . .
....
THE COURT: . . . . So [Steve] Frempong has been in front of me
several times. Really, my hands are tied with the decision today
because of the Appellate Court. I continued it several times because
we were waiting for the Appellate Court to come back. I have to deny
them because they’re not parties. . . .
....
THE COURT: . . . . [T]he Commonwealth Court trumps anything that
I do. So if they came back and say no, no, he’s not a party, it can’t be
allowed, I can’t let you intervene because they said no.
Id. at 222a-24a. Thus, by orders dated October 9, 2019, Common Pleas denied the
Fempongs’ motion to strike and petition to intervene. Common Pleas’ order denying
the petition to intervene explained the denial was “per Commonwealth Court Order
dated October 2, 2019.” Id. at 227a. The Frempongs timely filed this appeal.6
Common Pleas issued an opinion dated December 7, 2021. Common Pleas
explained it denied the Frempongs’ motion to strike because they did not establish a
6
This Court granted the City’s application to quash the appeal by per curiam order on November
10, 2020, reasoning the Frempongs filed an untimely and difficult to interpret concise statement
of errors complained of on appeal. The Frempongs filed a petition for allowance of appeal to our
Supreme Court, which granted the application and issued its own per curiam order vacating this
Court’s decision on June 9, 2021. City of Phila. v. F.A. Realty Invs. Corp. (Pa., No. 15 EAL 2021,
filed June 9, 2021). The Supreme Court concluded the Frempongs’ concise statement was timely
filed and sufficiently clear. It remanded for this Court to consider the merits of the Frempongs’
issues.
5
jurisdictional defect, or other fatal defects or irregularities in the record. Id. at 243a,
250a-57a. It explained it denied their petition to intervene because of this Court’s
October 2, 2019 order. Id. at 243a. Common Pleas also observed the Frempongs
filed a praecipe to attach the deed transferring an interest in the Property to Agnes
Frempong to their petition to intervene. Id. at 248a. It reasoned Agnes Frempong
executed the deed after the City reportedly served its sheriff’s sale petition, and the
deed “only demonstrated a de[]minimis interest” in the Property. Id. Common Pleas
explained it “viewed this deed as an improper transaction and remained unconvinced
of a viable ownership interest.” Id. It noted Steve Frempong’s close relationship to
F.A. Realty and opined the Frempongs were not entitled to intervene because F.A.
Realty could likely represent any interests they might possess. Id. at 249a.
II. Discussion
We focus our analysis on the denial of the Frempongs’ petition to intervene.7
The Frempongs argue they were indispensable to the sheriff’s sale proceeding and
entitled to intervene because Agnes Frempong was a part owner of the Property and
Steve Frempong was a lessee. Frempongs’ Br. at 19-23, 26, 29-30. The Frempongs
argue Common Pleas did not hold an adequate intervention hearing and incorrectly
viewed this Court’s order quashing their appeal at docket number 511 C.D. 2019 as
precluding intervention. Id. at 12-13, 17-26, 30-31. They dispute Common Pleas’
7
The Frempongs’ arguments challenging the denial of the motion to strike are essentially identical
to the arguments F.A. Realty raises in its appeal at docket number 1863 C.D. 2019. See
Frempongs’ Br. at 10-15, 32-61. Given our resolution of the Frempongs’ challenge to the order
denying their petition to intervene, and our decision in F.A. Realty’s appeal, the question of
whether Common Pleas should have granted the motion to strike is moot, and we do not consider
it further.
6
description of Agnes Frempong’s ownership interest in the Property as de minimis,
emphasizing property rights are constitutionally protected.8 Id. at 19-20, 27.
Whether a person is indispensable to litigation, and whether that same person
might otherwise qualify to intervene, are distinct legal questions. Failure to join an
indispensable party deprives the court of subject matter jurisdiction. Polydyne, Inc.
v. City of Phila., 795 A.2d 495, 496 (Pa. Cmwlth. 2002) (citing Pa. Game Comm’n
v. K.D. Miller Lumber Co., Inc., 654 A.2d 6, 9 (Pa. Cmwlth. 1994)). Questions of
subject matter jurisdiction are legal questions subject to a de novo standard of review
and plenary scope of review.9 Off. of Att’y Gen. ex rel. Corbett v. Locust Twp., 968
A.2d 1263, 1269 (Pa. 2009) (quoting Mazur v. Trinity Area Sch. Dist., 961 A.2d 96,
101 (Pa. 2008)).
A party is indispensable if “his or her rights are so connected with the claims
of the litigants that no decree can be made without impairing those rights.” Banfield
v. Cortes, 922 A.2d 36, 43 (Pa. Cmwlth. 2007) (en banc) (citing Sprague v. Casey,
550 A.2d 184 (Pa. 1988)). The basic inquiry is “whether justice can be done” in the
8
Both the Frempongs and the City argue waiver with respect to our order at docket number 511
C.D. 2019. Citing Pa.R.A.P. 302, the City argues the Frempongs waived a challenge to Common
Pleas’ interpretation of the order by failing to question it at the October 9, 2019 hearing. City’s
Br. at 15-16. Rule 302(a) provides: “Issues not raised in the trial court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a). As Common Pleas raised the applicability
of our order at the hearing on October 9, 2019, Rule 302(a) does not apply. The Frempongs,
meanwhile, argue Common Pleas waived “the issue of intervention” by not sufficiently explaining
its reliance on our order in compliance with our Supreme Court’s remand directive. Frempongs’
Br. at 14, 23, 25-27. The law the Frempongs cite does not support the proposition Common Pleas
can “waive” an order it entered or its arguments in support of that order. Regardless, we find
Common Pleas’ explanation of its order sufficient.
9
Stated differently, we do not defer to Common Pleas when reaching our decision, and we review
the entire record on appeal. Mercury Trucking, Inc. v. Pa. Pub. Util. Comm’n, 55 A.3d 1056, 1082
(Pa. 2012) (citing Heath v. Workers’ Comp. Appeal Bd. (Pa. Bd. of Prob. & Parole), 860 A.2d 25,
29 n.2 (Pa. 2004)).
7
party’s absence. HYK Constr. Co., Inc. v. Smithfield Twp., 8 A.3d 1000, 1015 (Pa.
Cmwlth. 2010) (quoting City of Phila. v. Commonwealth, 838 A.2d 566, 581 (Pa.
2003)). Our courts sometimes examine the following factors when conducting this
inquiry:
1. Do absent parties have a right or interest related to the claim? 2. If
so, what is the nature of that right or interest? 3. Is that right or interest
essential to the merits of the issue? 4. Can justice be afforded without
violating the due process rights of absent parties?
City of Phila., 838 A.2d at 581 n.11 (quoting Mechanicsburg Area Sch. Dist. v.
Kline, 431 A.2d 953, 956 (Pa. 1981)).
We review orders denying intervention to determine whether Common Pleas
committed an error of law or abused its discretion. Wexford Sci. & Tech., LLC v.
City of Pittsburgh Zoning Bd. of Adjustment, 260 A.3d 316, 320 n.3 (Pa. Cmwlth.
2021) (quoting Pendle Hill v. Zoning Hearing Bd. of Nether Providence Twp., 134
A.3d 1187, 1192 n.5 (Pa. Cmwlth. 2016)). Although Section 12 of the Act, 53 P.S.
§ 7181, provides for intervention and substitution of defendants, Pa.R.Civ.P. 2350
expressly suspends Section 12 “insofar as it relates to intervention in proceedings to
enforce municipal claims and tax liens.” Therefore, the Pennsylvania Rules of Civil
Procedure governing intervention control our decision of this matter. See U.S. Bank
N.A. v. Manu, 207 A.3d 415, 425 n.20 (Pa. Cmwlth. 2019). They provide:
At any time during the pendency of an action, a person not a party
thereto shall be permitted to intervene therein, subject to these rules if
(1) the entry of a judgment in such action or the satisfaction of such
judgment will impose any liability upon such person to indemnify in
whole or in part the party against whom judgment may be entered; or
8
(2) such person is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court
or of an officer thereof; or
(3) such person could have joined as an original party in the action or
could have been joined therein; or
(4) the determination of such action may affect any legally enforceable
interest of such person whether or not such person may be bound by a
judgment in the action.
Pa.R.Civ.P. 2327.
Even if a court determines a petitioner satisfies the requirements of Rule 2327,
it may deny intervention when, among other things, “the interest of the petitioner is
already adequately represented.” Pa.R.Civ.P. 2329(2). A court must generally hold
a hearing on a petition to intervene, but “[a] hearing may not be required . . . where
it is apparent from the face of the petition that the requirements for intervention have
not been met.” Wexford Sci. & Tech., 260 A.3d at 324 (collecting cases); Pa.R.Civ.P.
2329.
Initially, Steve Frempong is not an indispensable party. This Court’s research
has uncovered no binding authority, and the Frempongs have provided none, which
indicates a lessee is indispensable to sheriff’s sale proceedings under the Act. The
Act does not even require service and notice for lessees. Section 39.2(a) of the Act10
provides notice of a rule to show cause “shall be served by the claimant upon owners,
mortgagees, [and] holders of ground rents, liens and charges or estates of whatsoever
kind.” 53 P.S. § 7193.2(a). The Act requires service and notice for the owners of
property and creditors, and Steve Frempong did not fit either category in this case.
Agnes Frempong, in contrast, was a part owner of the Property. In the City’s
August 14, 2019 answer to the Frempongs’ motion to strike, filed before the petition
10
Added by Section 4 of the Act of December 14, 1992, P.L. 859, 53 P.S. § 7193.2(a).
9
to intervene on September 3, 2019, it “admitted that upon being shown the actual
deed transmitting a 2 percent [sic] interest in the [P]roperty the City recognized that
[Agnes] Frempong does have an ownership interest.” R.R. at 196a. This Court’s
case law recognizes owners as indispensable to proceedings involving their property.
Fulton v. Bedford Cnty. Tax Claim Bureau, 942 A.2d 240, 244 (Pa. Cmwlth. 2008)
(collecting cases).
Nonetheless, Agnes Frempong did not acquire an interest in the Property until
November 2017, after the sheriff’s sale proceedings were underway. This Court has
explained the Act “does not provide the need to join indispensable parties in order
for a property to be properly sold at a sheriff's sale” but requires service of interested
parties, who may file a petition to intervene. City of Phila. v. F.A. Realty Invs. Corp.,
95 A.3d 377, 381-83 (Pa. Cmwlth. 2014). The City had no reason to include Agnes
Frempong as a defendant when it began this action. It was Agnes Frempongs’ duty
to file a petition to intervene once she acquired her interest.
This leaves the question of whether Common Pleas committed an error of law
or abused its discretion by denying the Frempongs’ petition to intervene under the
Pennsylvania Rules of Civil Procedure. We agree with the Frempongs that Common
Pleas misapplied this Court’s October 2, 2019 order quashing their appeal at docket
number 511 C.D. 2019. The fact someone is a nonparty does not prevent him or her
from intervening, as Common Pleas reasoned. The purpose of filing an intervention
petition is that “a person not a party” with a significant interest in the case may obtain
“all the rights and liabilities of a party.” Pa.R.Civ.P. 2327, 2330(a). Common Pleas
offered additional explanation for denying intervention to the Frempongs, however,
reasoning F.A. Realty could likely represent any interests they might possess under
10
Rule 2329(2).11 Although Common Pleas did not provide the Frempongs with the
opportunity to present evidence on their petition at the hearing on October 9, 2019,
our review of the record supports Common Pleas’ explanation, and it is apparent the
Frempongs were not entitled to intervene. See Wexford Sci. & Tech., 260 A.3d at
329.
As we have observed, Steve Frempong is the president, a shareholder, or both
with respect to F.A. Realty, and the record demonstrates the Frempongs consistently
act through F.A. Realty or on its behalf. In their petition to intervene and praecipe
attaching exhibits, the Frempongs relied on the November 2017 deed transferring a
2.5% interest in the Property to Agnes Frempong and on Steve Frempong’s lease of
the Property from F.A. Realty. Steve Frempong signed the November 2017 deed as
F.A. Realty’s president. R.R. at 187a. Agnes Frempong, meanwhile, served as F.A.
Realty’s representative and signed Steve Frempong’s lease. Id. at 192a. During the
hearing on October 9, 2019, F.A. Realty’s counsel acted as the Frempongs’ personal
attorney would, supporting their petition to intervene and offering Steve Frempong’s
views. See id. at 222a-24a (Counsel stating: “I have Supreme Court case law that
says that intervention can take place after judgment. So I think it’s something the
Court can entertain. . . . [W]hat [Steve] Frempong is concerned with is the motion
for intervention . . . .”). Ultimately, the Frempongs raised arguments in this appeal
that are essentially identical to the arguments F.A. Realty raised in its own appeal at
docket number 1863 C.D. 2019. This further confirms the Frempongs’ interests are
indistinguishable from F.A. Realty’s interests in this case.
11
Neither Common Pleas nor the Frempongs discuss whether the Frempongs met the requirements
of Rule 2327. The Frempongs seem to argue Rule 2327 does not apply to them because they “have
a right to intervene . . . but not a right to seek intervention as [Common Pleas] presumed.”
Frempongs’ Br. at 21. The Frempongs go on to maintain, without a clear explanation, that they
“sufficiently complied with said Pennsylvania Rules of Civil Procedure.” Id. at 22.
11
III. Conclusion
We conclude the Frempongs’ challenge to Common Pleas’ October 9, 2019
order denying their petition to intervene is meritless because F.A. Realty adequately
represents their interests. In addition, the Frempongs’ challenge to Common Pleas’
October 9, 2019 order denying their motion to strike is moot based on our conclusion
regarding intervention and our disposition in F.A. Realty’s appeal at docket number
1863 C.D. 2019. We therefore affirm the orders dated October 9, 2019.
______________________________
STACY WALLACE, Judge
Judge Fizzano Cannon concurs in result only.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 1686 C.D. 2019
:
F.A. Realty Investors Corporation :
:
Appeal of: Agnes Frempong and :
Steve Frempong :
ORDER
AND NOW, this 14th day of July 2023, the orders of the Court of
Common Pleas of Philadelphia County, dated October 9, 2019, which denied the
motion to strike and petition to intervene filed by Agnes Frempong and Steve
Frempong, are hereby AFFIRMED.
______________________________
STACY WALLACE, Judge